Montalvan v. Clover , 32 Barb. 190 ( 1860 )

Leonard, J.

The plaintiff, by her complaint, demands that the defendants Clover and Grlenton, executors of her father’s will, who died in Hicaragua in 1857, where he was domiciled, and where his will was executed and proved, shall invest her share of the estate, at interest, in the manner directed by tbq will. She alleges that the executors have collected all of the estate at present collectable, and neglect to put it at interest, as required by the will, but are using it in their joint commercial enterprises; that they have small means, and the"estate is in jeopardy; that all the debts of the deceased have been paid, and the executors have a large sum of money in hand belonging to the estate.

These defendants demur, on the ground that the court has no jurisdiction over foreign executors, or that the facts stated in the complaint do not make such a case as will entitle the plaintiff to invoke the aid of a court of equity against foreign executors.

The executors are not sued for any liability of the deceased, or his estate, but on their own liability for the wrongful use or misapplication of the trust funds which have come to their hands. The plaintiff requires them to perform their own duty or obligation, not any liability which existed against the deceased or his estate.

Courts of equity have sometimes granted their aid in behalf of the creditors of deceased persons against foreign executors, In such cases there has been a liability or debt on the part of the deceased, and an improper neglect of trust duties by the foreign executor, or an abuse of trust funds.

The will of the deceased, and the liability of the executors, are to be judged only according to the law of Nicaragua. But what reason is there to suppose that the law of Nicaragua would not require these executors to invest the trust moneys, after the payment of the debts of the deceased, according to the directions of the will P The presumption is certainly in favor of such a claim. The defendants are alleged to be now residing in New York. Possibly they will not again go within the jurisdiction of Nicaragua. Will they thus claim a perpetual exemption from the performance of their duty?

The defendants urge that no proceedings have been taken before the surrogate here. None are necessary. The estate of the deceased has been collected. There is no intervention of executors for that purpose required. There are no debts owing from the estate, and none owing to the estate here. No letters of administration here are necessary to call these executors to account; for the funds in their hands are not unadministered assets. The claim here is for a breach of duty which the defendants have committed, whereby the plaintiff is aggrieved.

[New York Special Term, April 3, 1860.

Leonard, Justice.]

The defendants have the right to claim the benefit of the laws of Nicaragua, but there is no reason to suppose that that state does not compel trustees and executors to fulfill their duties.

The obligation of foreign executors to the devisees or legatees under the will of a deceased person domiciled abroad, after the debts of the deceased party have been satisfied, offers no better reason for immunity from the process and judgments of courts of equity in other countries, for their wrongful dealings with the trust funds, than the case of trustees appointed by deed in a foreign country for the abuse of their trust. There is no exclusive locality, for the demand of justice under such circumstances.

The demurrer is overruled, with leave to the defendants Clover and Matthew J. Grlenton to answer in twenty days, on payment of the costs of the demurrer.